The BBC has an interesting take on the Apple versus Samsung patent case that is finally heading to the Supreme Court today, arguing that a definitive ruling is needed in order to bring a 19th Century law into the 21st Century.  It also explains why the legal battle probably won’t end with the Supreme Court’s ruling.

A one-paragraph recap for anyone who hasn’t been following the case closely. Samsung infringed several of Apple’s design patents – that is, patents concerned with how things look (in either hardware or software) rather than what they do. Samsung is no longer denying that. The lower courts ruled that Samsung must pay all of the profits made by infringing these patents. That’s the bit Samsung is fighting, arguing that it should pay a much smaller sum.

And it is this element of patent law which the BBC’s Dave Lee suggests needs to advance a century or two …

Things began when two carpet makers began copying the designs of other carpets back in 1885. That case, too, went all the way to the Supreme Court, and John and James Dobson were indeed found to have copied the designs, and to be liable for damages. But the court couldn’t decide how important the design was in driving sales and hence profits, so awarded only token damages.

This caught the eye of Connecticut senator Orville Platt who, pressured by worried carpet makers, lobbied Congress to amend the Patent Act to make sure design patents were given more weight. By 1887, those changes were written into law. 

Senator Platt was looking to protect the interests of a thriving local industry – and he certainly achieved that. But he also put in place the framework that means, 129 years on, Samsung and Apple find themselves arguing over the very same principle. 

That amendment – requiring all profits made from the infringing devices to be paid as damages – stands today, which is why the award to Apple was so large. And it’s that amendment which Samsung is, 129 years later, challenging.

There are companies weighing in on both sides, but legal academics appear to believe that Samsung will prevail.

Speculation among those in the know sides with Samsung in that it makes the most sense that Samsung should pay some damages, but not the entirety of its profit on the device sales.

“That would be the understanding the majority of law professors would advocate for,” suggested Prof Andrea Matwyshyn from Northwestern University in Boston.

She said while design of, say, a carpet could be considered the be-all-and-end-all of its success, a smartphone is a far more complex device. Design is important, but not the only factor.

So the case is a crucial one because it will set a precedent that will guide all future design patent cases. Interestingly, though, while you might imagine that a ruling by the highest court in the land would finally bring the case to an end, that isn’t the case here. The Supreme Court will simply rule yes or no on the question of whether the damages should amount to all the profits made. If it decides that a lower sum is appropriate, it will pass the matter back down to a federal court to finalize the exact amount.

Oh, and it may not be the last Apple v Samsung patent case to reach the Supreme Court …

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